Free Speech Week: Much To Celebrate

Free Speech Week is upon us. Or, as the headline of a story about the week written by Amy Mclean in Cablefax puts it: “What a Time for Free Speech Week.” What a time, indeed.

Just last week we saw the president raising the specter of whether the government should revoke television licenses based on the content of televised news coverage. The same president has wondered aloud (via Twitter, of course) whether the National Football League should have federal tax benefits revoked if owners continue to allow players to kneel during the National Anthem.

Continue reading “Free Speech Week: Much To Celebrate”

The Enduring Threat of Net Neutrality

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary. – H.L. Mencken

No regulatory issue in memory has been quite like that of “net neutrality.” A solution in search of a problem, bankrolled and of early and particular economic benefit to two companies, and a regulation that threatens to give government sway over an industry where it had none before, network neutrality by regulation defies logic, history, and the way the world works. Other than that it’s one terrific idea.

Net neutrality was conjured up by an alliance of left-wing activists, Democratic commissioners of the FCC, and certain Internet companies and their trade associations. The regulations that followed have been on a devolutionary path, such that what was merely bad (net neutrality under Title I) became, in 2015, very much worse – net neutrality under Title II.
Among the several unique aspects of the net neutrality wars, perhaps the most significant is the fact that all of the ISPs are in favor of the concept. Indeed, their business models depend on it. This explains why there have never been any but the most trivial examples, and very few at that, of ISPs allegedly violating net neutrality.

Another distinguishing feature is the perfervid mindset, and resort to the most preposterous sloganeering (“Net Neutrality: The First Amendment of the Internet”), of its promoters. From the presumably learned (Tom Wheeler) to the crackpots (Free Press), comes a passion for the issue that smacks of the kind of fanaticism one would expect to see where a problem and its solution are things of such genuine importance they justify the most over-the-top words and tactics.

Not so net neutrality. Looked at in terms of its practical effects, Title II regulation will cause ISPs to not do precisely nothing that they wouldn’t have done without Title II. Which is not the same thing as saying Title II won’t have any effects. It will. It will invite future (Democratic) majorities at the FCC to use their leverage over the ISPs (with the implicit threat of rate regulation) to coerce practices that, sooner or later, will impinge on content. And it’s this, the threat to First Amendment values that, if the current regulation is not removed or amended, will be the hallmark of net neutrality.

Consider the warning issued by Laurence Tribe and Thomas Goldstein, in a paper they wrote in 2009:

Net neutrality proposals rest on the mistaken premise that the Constitution gives the government a role in ensuring that the voices of various speakers receive equivalent attention and that audiences receive equal access to all speakers. In fact a central purpose of the First Amendment is to prevent the government from making just such choices about private speech, including decisions about what amount of any given kind of speech is optimal.

Like Floyd Abrams, whose unforgivable sin among progressives was to argue (and brilliantly) that Citizens United was unconstitutional, Tribe was criticized for his take on net neutrality. Consider, for instance, Columbia Law professor Timothy Wu, widely acknowledged as one of the leaders, if not the leader, of the net neutrality brigades. In 2015, Wu wrote in The New Yorker an article titled “Did Laurence Tribe Sell Out?”

Reminiscent, minus the eloquence, of Mark Antony’s funeral speech (“…and Brutus is an honorable man….”), Wu questioned, in the pose of a sympathetic inquiry, if Laurence Tribe had damaged his credibility by representing a number of corporations, including Time Warner Cable, for whom Tribe co-authored the 2009 piece. Quoth the Wu: “Tribe’s corporate work has created skepticism about where his views come from, even if they are sincere (which I believe they are), and this is what is creating the reputational damage.”

From the beginning, and to this very day, the Big Lie propagated by net neutrality’s promoters is that absent Title II regulation the cable and phone companies would discriminate against smaller and newer companies, favor their own competing content, and thereby “kill the Internet as we’ve known it.” It was a bad joke from the beginning and it’s even less funny now.

By all indications, FCC Chairman Pai and the other two Republican commissioners intend to eliminate Title II regulation perhaps as early as this year. In fact, it will be a simple thing for them, or any future FCC to do – in or out, depending on the majority of commissioners in place.

Which is why, when the dust settles after repeal and all the subsequent lawsuits have been resolved, there may then arise within Congress a genuine interest in finding some legislative solution that all parties can live with, and that comports with the spirit of the First Amendment.


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory council, or contributors. This article appeared here in the Daily Caller on Oct. 10, 2017.

The Real Crisis of Campus Free Expression

College campuses should be bastions of free speech.  Today, they often seem to be the very places in American society where there is the least tolerance for controversial ideas.  Unfortunately, much of the discussion of why this has occurred is based on the ad hoc experiences of a few campuses, including Berkeley, Claremont McKenna, and Middlebury that briefly gained national attention when lecturers were harassed or prevented from speaking by unruly and, occasionally, riotous crowds.

Systematic public opinion polling and anecdotal evidence suggests that the real problem of free expression on college campuses is much deeper than episodic moments of censorship: With little comment, an alternate understanding of the First Amendment has emerged among young people that can be called “the right to non-offensive speech.”  This perspective essentially carves out an exception to the right of free speech by trying to prevent expression that is seen as particularly offensive to an identifiable group, especially if that collective is defined in terms of race, ethnicity, gender, or sexual identity.

A Gallup survey sponsored by the Knight Foundation and the Newseum illustrated the emerging views of a new generation.  In fact, most college students (73 percent in our survey) are confident about the security of free speech, and even more (81 percent) believe that the free press is secure.  They are actually much more sanguine than older adults about both the current state of free speech (only 56 percent of adults believe speech is secure) and free press (64 percent for adults).

However, the same survey found that today’s college students also favor restrictions on free speech when it comes to slurs and other language that is deliberately upsetting to some groups.  Sixty-nine percent favor limitations on this kind of speech, while 63 percent support policies that restrict the wearing of costumes that stereotype particular groups.  Notably, all student subgroups – including whites, men, and Republicans – support restrictions on slurs and costumes.  Students view these restrictions as consistent with their understanding of the First Amendment.

The result, not surprisingly, are campus climates shaped by policies designed to reduce offensive speech but that also discourage expression.  Our survey found that 54 percent of students agree that their campus climate “prevents some people from saying things they believe because others might find them offensive.”

Of course, high-level observations about an entire age cohort are by definition difficult and care must be taken in making generalizations.  However, to ignore the different view that many of today’s students have on free speech would be to doom any effort to promote intellectual exchange on campus.

The effort to promote free speech on campus cannot simply focus on how many speakers are allowed.  Rather, a systematic effort must be undertaken to educate young people about the importance of free speech.  Most notably, the case for free speech will be especially persuasive to young people if it is repeatedly and powerfully argued that free expression especially benefits minorities and those alienated from society.  Young people themselves are the best ambassadors for this message.  Such an approach will depoliticize the discussion and thereby build a larger constituency for free speech.  Absent such efforts, we may continue to speak past each other. Other critical steps include:

  • Elementary and secondary schools must educate students on the First Amendment, how far the right of free expression extends, and the opportunities it affords to those who want to change society.  Students carry attitudes with them to college so we must address young people when their views on free speech are first being formed.
  • Colleges and universities must make an absolutist case for speech to a generation of students who have more complicated views.
  • Colleges and universities will have to become much more deliberate about encouraging advocates of free expression.

Generational attitudes develop over long periods of time and it will require sustained attention to ensure that tomorrow’s leaders understand that the long-standing understanding of our First Amendment freedoms is critical to the functioning of our democracy.


Guest author Jeffrey Herbst is President and CEO of the Newseum in Washington, D.C.  This paper is excerpted from “Addressing the Real Crisis of Free Speech,” which can be found at: http://www.newseuminstitute.org/wp-content/uploads/2017/04/WhitePaper_Herbst_FreeExpressionOnCampus.pdf.  The Free Speech on Campus project – including two conferences and this paper – was supported by a grant to the Newseum Institute from the John S. and James L. Knight Foundation.

Keep Big Bird, Ditch the News: A Path Forward for PBS With Budget Cuts

As was the case a half-dozen years ago, PBS and NPR are again the subject of a contentious debate about their taxpayer funding, this time courtesy of President Trump. The problem with that debate, then and now, is that like so many policy disputes, the arguments employed oversimplify the facts and ignore the obvious. I wrote about this matter in 2011 in a piece published in the now-defunct app called The Daily. What follows is an update of that piece.

For years, Republicans and conservatives have accused NPR and PBS of ideological and political bias. Things came to a head in 2010 when NPR fired Juan Williams as a commentator for allegedly making anti-Muslim remarks, and NPR successfully solicited funding for local reporting from a foundation controlled by the uber liberal George Soros.

This perception of bias would be noteworthy enough even if these broadcasters were not financially supported by taxpayers, conditioned on explicit statutory language requiring objectivity and balance. Since, however, they are, the ubiquity and durability of this perception becomes very nearly miraculous. Surely it’s not easy to so thoroughly offend one of the two major parties that, in the House vote in 2011, virtually every Republican member voted to defund NPR » Read More


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors. The full version of this article appeared in The Hill on March 21, 2017.

Sunshine Week: A Timely Celebration

Sunshine Week, a nationwide event taking place this week (March 12-18), is an annual reminder that access to government information is not something we can take for granted. In fact, prior to July 4, 1967, when the Freedom of Information Act (FOIA) took effect, access to federal government information was not a given at all. It took an act of Congress to counteract the tendency of government bureaucrats to over-classify, obfuscate, and procrastinate when it came to making even innocuous information available to the public.

Sunshine Week was created by the American Society of News Editors in 2005 and is now coordinated by that group in partnership with the Reporters Committee for Freedom of the Press. With these groups heading the effort, it would be easy to think of Sunshine Week as something primarily by and for journalists. Of course having access to public information is of great interest to journalists. That kind of access is essential if the press is to perform its role as a watchdog of government at all levels in this great democracy.

Continue reading “Sunshine Week: A Timely Celebration”

In ‘Media vs. Trump’ Battle, the President Has the People on His Side

It’s safe to say that nobody alive today has ever seen anything like it: A newly elected president who, so far from being a professional politician, says off-the-cuff things in conversation or midnight tweets that positively invite indignant responses – and a media and entertainment industry that has been loudly marching against him ever since he won the nomination.

The consuming question in these parts is less how it began than how it will end, and with what consequences. It’s pretty clear now that it’s open warfare between the White House and the mainstream media (MSM) – the New York Times, Washington Post, and CNN in particular – and Hollywood.

Of course it could come to an end with a kind of detente with no clear winner, but that seems unlikely given the hubris of the combatants. So it probably comes down to one of two results: (1) The president is undone politically by GOP defections or through impeachment proceedings; or (2) Trump and his supporters engineer an anti-media campaign with teeth, causing the media to back down.

Everyone is familiar with the practice of activists harassing advertisers, starting letter-writing campaigns, picketing the homes and offices of businesses and executives, and promoting boycotts » Read More


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Hill on March 2, 2017.

Trump Continues To Make the Media and Hollywood Dance to His Tune

It would be amusing if it weren’t so serious.

Seemingly incapable of letting pass even the most trivial challenges, like the media’s invidious comparison between the size of the inaugural crowd and the numbers assembled for the so-called Women’s March on Washington, President Trump responds with a claim that not only can’t be corroborated but is plainly false. He responds similarly to the tiresome and sophomoric criticism of him by Meryl Streep, with the claim that Ms. Streep is an “over-rated” actress.

And he suggests, as an explanation for why he lost the popular vote, that it was because 3 million people voted illegally, rather than the much better explanation that he didn’t even bother to campaign in states like New York and California, where he knew he couldn’t win the electoral vote, and where, as with California’s strange election laws, there wasn’t even a Republican on the ballot for the open Senate seat.

But for all the president’s foibles, it’s the post-election breakdown of the media and entertainment industries that is the most revealing and the most disturbing.

The beginning of wisdom in understanding why this is of such importance is in knowing that the vast majority of Americans » Read More


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Hill on Feb. 8, 2017.

Donald Trump and the Future of the Mainstream Media

The presidential election has lit a fuse on discussions about the present and future of the mainstream media (MSM). Opinions are hot and heavy, and predictable for the most part according to the political mindset of the commenter.

Some people, for instance, attribute Trump’s win to the media’s extensive coverage of him during the primaries, while others see the influence of so-called “fake news” as a factor. People of these and kindred opinions tend not to see, or acknowledge, any significance in the election results for the future of the MSM.

Other people think that Trump won precisely because he characterized the media as being part of the “corrupt establishment,” with Michael Wolff, for instance, writing in the Hollywood Reporter that the election was not between the Republican and Democratic parties but between the Trump Party and the Media Party. As Wolff puts it, “The media turned itself into the opposition and, accordingly, was voted down.” Many such people, Wolff excluded, tend to see (indeed, hope for) a dismal future for the mainstream media.

Yet other commenters see in the election results the damaging effects on the MSM and the country as a whole of the social media, » Read More


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Hill on Jan. 6, 2017.

Jeff Bezos Owns the Washington Post – and the Journalism It’s Practicing

The Washington Post has for years been a newspaper that favors Democrats and liberalism generally. This has been seen in the kind and quality of issues covered, and not covered, in its feature and investigative stories, and in its editorials. But not until this year has the paper so grossly abandoned the practice of separating news from opinion in its news stories.

And that is something that, for all his distractions and grandeur, the Post’s owner, Jeff Bezos, must now correct — that or he needs to accept personally the decline and opprobrium that is coming the Post’s way.

Under normal circumstances the owner of a media company is best advised to steer clear of editorial matters, but that won’t work at the Post any longer. It’s become obvious that, with the election of Donald Trump, none of the editors at the paper can be trusted to uphold even the most basic of journalistic standards.

This has been true since Trump first announced his candidacy, but it has escalated gruesomely since his election. Witness, for instance, what is perhaps the shoddiest piece of feature writing since Rolling Stone published its blatantly false story about a campus rape at the University of Virginia. » Read More


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Hill on Nov. 29, 2016.

The Biggest Loser in 2016? The Mainstream Media and Journalism

There are many losers in the wake of Donald Trump’s victory. They include Hollywood, pollsters, the Bush family and the GOP’s donor class, and neocons. But the biggest losers are the mainstream media (MSM) and journalism itself.

And it’s the damage done to journalism, not the fate of pundits or media outlets, that is the most disturbing. After all, it’s been reported for years that Republicans and conservatives in ever larger numbers deem the MSM to be in the Democrats’ and liberals’ corner, and if that perception is okay with media moguls it’s their choice to make — and to live with the consequences in the marketplace.

But when, as happened this year, so much of the media openly and willfully suspended the practice of separating news from opinion, they crossed a boundary of what’s rightly theirs and what’s ours. It’s our right and need to know about civic matters, fully, fairly and accurately, that is the public virtue in journalism and the sine qua non of democracy.

Although virtually all of the MSM violated this boundary in their frantic support of Clinton, some were worse than others. As is often the case, CNN led in this category, » Read More


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Hill on Nov. 15, 2016.